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Cardozo Law Review
NOTE: THE TAIL WAGGING THE DOG: LOCAL SUMMARY JUDGMENT RULES THAT DEEM FACTS ADMITTED
CARDOZO LAW REVIEW
30 Cardozo L. Rev. 2223
Nathaniel S. Boyer*
Federal summary judgment procedure has an expansive and tedious underbelly: local rules. Over sixty districts have enacted rules 1 mandating that the moving party submit some sort of accompanying Statement of Material Facts (SMF), and almost all require a response-in-kind from the non-moving party. 2 These local SMF rules were created to streamline the summary judgment process, 3 guiding the court through the facts so that the judge can more easily determine whether there is a "genuine issue as to any material fact." 4
But many of these local rules go too far. Usually, assertions made in the SMFs are deemed "admitted" if they are not controverted in the non-movant's response to the SMF. 5 Thus, the tail is wagging the dog; a literal reading of many of these rules would suggest that, where an SMF goes uncontroverted, the court does not need to examine the record at all, and can instead rely entirely on a bald assertion in the SMF and grant a motion for summary judgment. Taken to its logical extreme, a plaintiff, bearing the burden of proof, could file a motion for summary judgment without providing any evidence, but nevertheless win on the strength of unsupported assertions in its SMF. 6
This scenario arises with a fair amount of frequency, at least on occasions when the defendant has moved for summary judgment. 7 The Second Circuit was presented with one particularly stark example in 2003. 8 The plaintiff (Giannullo) ...
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